Kozarovski v Georges River Council

[2021] NSWLEC 1512

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kozarovski v Georges River Council [2021] NSWLEC 1512

Hearing dates:

Conciliation conference on 18 August 2021

Date of orders:

3 September 2021

Decision date:

03 September 2021

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court notes that:

1. Georges River Council, as the relevant consent authority has agreed, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to amend Development Application (DA/2021/0051) with the amended plans listed in Condition 1 of Annexure A to this agreement (Amended Plans).

2. The Amended Plans were uploaded to the NSW planning portal on 24 August 2021.

The Court orders:

1. The applicant is to pay the respondent's costs thrown away, pursuant to s.8.15 (3) in the amount of $2,000 within 28 days.

2. The appeal is upheld.

3. Development Application No. DA/2021/0051 seeking consent for the demolition of existing structures, removal of trees and construction of a single level child care centre for 52 children with basement carpark and landscaping at Lot 207 in Deposited Plan 6202 otherwise described as 12 Resthaven Road, South Hurstville, NSW 2221, is approved subject to the conditions in Annexure 'A' to this agreement.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – child care centre – agreement between the parties – orders

Legislation Cited:

Education and Care Services National Regulations, cll 107, 108

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Kogarah Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 6.2

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cll 22, 23

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Texts Cited:

Child Care Planning Guideline, NSW Department of Planning and Environment, August 2017

Category:

Principal judgment

Parties:

Marko Kozarovski (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
A Hemmings (Applicant)
J Ware (Solicitor) (Respondent)

Solicitors:
Thomson Geer Lawyers (Applicant)
Georges River Council (Respondent)

File Number(s):

2021/139806

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act). They arise as the result of the deemed refusal of development application DA2021/0051 for the demolition of existing structures, removal of trees and construction of a single level child care centre for 52 children with basement carpark and landscaping at 12 Resthaven Road, South Hurstville, Lot 207 DP6202.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 18 August 2021. I presided over the conciliation conference.

3. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal and granting development consent to the development application subject to conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how each prerequisite has been satisfied. From this I note the following:

5. The site is zoned R2 Low Density Residential under the Kogarah Local Environmental Plan 2012 (KLEP), in which centre-based child care facilities are permitted with consent. Pursuant to KLEP cl 2.3(2) I have had regard to the objectives of the zone and am satisfied that the proposed development “enable(s) other land uses that provide facilities or services to meet the day to day needs of residents.”

6. The proposed development is within the 9m maximum building height and floor space ratio required under cll 4.3 and 4.4 respectively of the KLEP.

7. Based on the Geotechnical Investigation prepared by STS Geotechnics Pty Ltd dated October 2020, I am satisfied that the matters required for consideration under KLEP cl 6.2(3) have been adequately addressed and that the earthworks required for this development will meet the objective of KLEP cl 6.2.

8. Pursuant to the requirements of cl 7 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55), based on the Preliminary Soil Assessment prepared by EI Australia, dated 17 August 2021, and the inclusion of condition 1 of Annexure A, I am satisfied that the subject site is suitable for the intended use as a child care centre.

9. Clause 23 of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Child Care SEPP) requires the consent authority to take into consideration any applicable provisions of the Child Care Planning Guideline (the Guideline). Based on the information provided in the amended Statement of Environmental Effects (SEE), dated 16 July 2021, and on the resolution of all contentions raised by the Council that relate to items pertaining to the Guideline, I am satisfied that the development is consistent with all relevant provisions of the Guideline. The requirement of cl 23 of the Child Care SEPP is subsequently met.

10. The proposed development complies with regulations 107 (indoor unencumbered space requirements) and 108 (outdoor unencumbered space requirements) of the Education and Care Services National Regulations (Regulations) by providing 169.38m² of unencumbered indoor play space and 365.5m² of unencumbered outdoor play space. Subsequently, pursuant to cl 22 of the Child Care SEPP, the concurrence of the Regulatory Authority is not required.

11. Based on the revised drawings and the information provided in the SEE, I am satisfied that the requirements of Part 4.3 Physical Environment, Divisions 1 and 2 of the Regulations are met with the proposal, specifically through the provision of:

• Office administration and staff rooms

• unencumbered indoor space of more than 3.25m² per child;

• unencumbered outdoor space of more than 7m² per child with shade;

• an on-site laundry facility;

• craft sinks and areas in the play rooms;

• a food preparation/kitchen area that is inaccessible to children;

• nominated children’s toilet facilities;

• nappy change facilities;

• a sleeping area/cot room;

• ventilation and natural light;

• premises designed to facilitate supervision; and

• storage areas adjoining the playrooms and outdoor space.

12. For the above reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

13. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

14. The Court notes that:

1. Georges River Council, as the relevant consent authority has agreed, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to amend Development Application (DA/2021/0051) with the amended plans listed in Condition 1 of Annexure A to this agreement (Amended Plans).

2. The Amended Plans were uploaded to the NSW planning portal on 24 August 2021.

15. The Court orders:

1. The applicant is to pay the respondent's costs thrown away, pursuant to s.8.15 (3) in the amount of $2,000 within 28 days.

2. The appeal is upheld.

3. Development Application No. DA/2021/0051 seeking consent for the demolition of existing structures, removal of trees and construction of a single level child care centre for 52 children with basement carpark and landscaping at Lot 207 in Deposited Plan 6202 otherwise described as 12 Resthaven Road, South Hurstville NSW 2221, is approved subject to the conditions in Annexure 'A' to this agreement.

……………………….

E Washington

Acting Commissioner of the Court

Annexure A (425552, pdf)

Approved architectural plans (10150676, PDF)

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